Robbins v. Lower Merion School District (PDF)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BLAKE J. ROBBINS, a Minor, by his Parents
and Natural Guardians, MICHAEL E. ROBBINS
and HOLLY S. ROBBINS, Individually, and on
Behalf of all Similarly Situated Persons,
437 Hidden River Road
Penn Valley, PA 1 9072- 1112,

Plaintiffs,

LOWER MERION SCHOOL DISTRICT,

301 East Montgomery Avenue
Ardmore, PA 19003,

and
THE BOARD OF DIRECTORS OF THE
LOWER MERION SCHOOL DISTRICT,
301 East Montgomery Avenue
Ardmore, PA 19003,

and
CHRISTOPHER W. McGINLEY,
Superintendent of Lower Merion School District,
301 East Montgomery Avenue
Ardmore, PA 19003,

Defendants.

CIVIL ACTION

NO.

JURY TRIAL DEMANDED

CLASS ACTION COMPLAINT

Plaintiffs, individually and on behalf of all similarly situated persons, by and through
their undersigned attorneys, Lamm Rubenstone LLC, allege the following upon information and
belief (except for those allegations pertaining to Plaintiffs, which are based on personal
knowledge), after due investigation by undersigned counsel.

NATURE OF THE ACTION

1. Plaintiffs, Michael E. and Holly S. Robbins, bring this action on their own behalf
and on behalf of their minor son, Blake J. Robbins, and as a Class Action on behalf of a class

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consisting of Plaintiffs and all other students, together with their parents and families (the
"Class"), who have been issued a personal laptop computer equipped with a web camera
("webcam") by the Lower Merion School District. Plaintiffs and the Class seek to recover
damages caused to the Plaintiffs and Class by Defendants' invasion of Plaintiffs' privacy, theft
of Plaintiffs' private information and unlawful interception and access to acquired and exported
data and other stored electronic communications in violation of the Electronic Communications
Privacy Act, The Computer Fraud Abuse Act, the Stored Communications Act, § 1983 of the
Civil Rights Act, The Fourth Amendment of the United States Constitution, the Peimsylvania
Wiretapping and Electronic Surveillance Act and Pennsylvania common law.

2. Unbeknownst to Plaintiffs and the members of the Class, and without their
authorization, Defendants have been spying on the activities of Plaintiffs and Class members by
Defendants' indiscriminant use of and ability to remotely activate the webcams incorporated into
each laptop issued to students by the School District. This continuing surveillance of Plaintiffs'
and the Class members' home use of the laptop issued by the School District, including the
indiscriminant remote activation of the webcams incorporated into each laptop, was
accomplished without the knowledge or consent of the Plaintiffs or the members of the Class.

3. Plaintiffs and the Class bring this action pursuant to §§2511 and 2520 of the
Electronic Communications Privacy Act ("ECPA"), 18 U.S.C. §§ 2511 and 2520, § 1030 of the
Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. §1030, §2701 of the Stored
Communication Act ("SCA"), 18 U.S.C. §2701, § 1983 of the Civil Rights Act, 42 U.S.C.
§ 1983, The Fourth Amendment of the United States Constitution, U.S. CONST, amend. IV, the
Pennsylvania Wiretapping and Electronic Surveillance Act, 18 Pa. C.S.A. §5701 et seq.
("PWESA"), and Pennsylvania common law.

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4. This Court has original jurisdiction over Plaintiffs' and the Class' federal law
claims pursuant to 28 U.S.C. §§ 1331 and 1137, and supplemental jurisdiction over Plaintiffs'
and the Class' state law claims pursuant to 28 U.S.C. § 1367.

5. Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b) and (c) as each
Defendant is a resident of and/or maintains a permanent business office in this district.

6. In connection with the acts and conduct complained of, Defendants, directly or
indirectly, used the means and instrumentalities of interstate commerce, including the internet.

THE PARTIES

7. Minor Plaintiff, Blake J. Robbins, is a high school student attending Harriton
High School at 600 North Ithan Avenue, Rosemont, Pennsylvania, 19010. Harriton High School
is part of the Lower Merion School District.

8. Plaintiffs, Michael E. Robbins and Holly S. Robbins, husband and wife, are the
parents and natural guardians of Blake. J. Robbins, with a residence address of 437 Hidden River
Road, Penn Valley, Pennsylvania, 19072-1112. Blake J. Robbins, Michael E. Robbins and
Holly S. Robbins are hereinafter collectively referred to as "Plaintiffs."

9. Defendant, Lower Merion School District ("School District"), is a municipal
corporation body politic within the Commonwealth of Pennsylvania with a principal place of
business at 301 East Montgomery Avenue, Ardmore, Pennsylvania, 19003.

10. Defendant, Board of Directors of the Lower Merion School District ("Board"), is
comprised of a nine (9) member board elected locally to act as a corporate body in fulfilling the
School District's and the Commonwealth of Pennsylvania's obligation to provide public
education. The Board can be contacted through its secretary, Fran Keaveney, with an address of
301 East Montgomery Avenue, Ardmore, Pennsylvania, 19003.

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1 1 . Defendant, Superintendent of Schools Christopher W. McGinley ("McGinley"), is
a School District Administrator appointed by the Board to supervise the day to day operation of
the School District. As such he is responsible for the implementation of policies, procedures and
practices instituted by the Board. The School District, the Board and McGinley are hereinafter
collectively referred to as "Defendants."

CLASS ACTION ALLEGATIONS

12. Plaintiffs bring this action as a Class Action under Rules 23(a), 23(b)(1), 23(b)(2)
and 23(b)(3) of the Federal Rules of Civil Procedure on behalf of a Class consisting of Plaintiffs
and all other students of Harriton High School and Lower Merion High School who have been
issued by the School District a laptop computer equipped with a webcam, together with their
families. Excluded from the Class are the Defendants herein, any subsidiary of any of the
Defendants, any family members of the Defendants who attend either high school, all employees
and directors of Defendants or any subsidiary, and their legal representatives, heirs, successors or
assigns of any such excluded person or entity.

13. The Class is so numerous that joinder of all members is impracticable. The
student body of both high schools within the School District consists of approximately 1,800
students. Additionally, the proposed Class includes each high school student's immediate family
members.

14. Plaintiffs' claims are typical of the claims of the other members of the Class, as
Plaintiffs and all other members were injured in exactly the same way - by the unauthorized,
inappropriate and indiscriminant remote activation of a webcam contained within a laptop
computer issued to students by the School District and the intentional interception of their private
webcam images in violation of federal and state law as complained of herein.

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15. Plaintiffs will fairly and adequately represent the interests of the Class and has
retained counsel competent and experienced in Class Action litigation.

1 6. Plaintiffs have no interests that are contrary to or in conflict with those of the
Class.

17. A Class Action is superior to other available methods for the fair and efficient
adjudication of this controversy. Since the damage suffered by individual Class members may
be relatively small, the expense and burden of individual litigation make it virtually impossible
for the Class members individually to seek redress for the unlawful conduct alleged.

1 8 . Plaintiff knows of no difficulty that will be encountered in the management of this
litigation that would preclude its maintenance as a Class Action.

19. Common questions of law and fact exist as to all members of the Class and
predominate over any questions effecting solely individual members of the Class. Among the
questions of law and fact, common to the Class:

a. Whether Defendants' acts as alleged herein violated the ECPA, the CFAA,
the SCA, § 1983, The Fourth Amendment of the United States Constitution, the PWESA or
Pennsylvania common law;

b. Whether Defendants participated in and pursued the concerted action or
common course of conduct complained of; and

c. Whether Plaintiffs and members of the Class have sustained compensable
damages and, if so, the proper measure of such damages.

SUBSTANTATIVE ALLEGATIONS

20. In the Superintendent of Schools welcome address appearing on the Lower
Merion School District website as of the date hereof the Superintendent states as follows:

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The District is also in the final stages of implementing a one to one
laptop computer initiative at the High Schools. Thanks in part to
State and Federal grants secured by our technology staff during the
past few years, every high school student will have their own
personal laptop-enabling an authentic mobile 21^' Century learning
environment. The initiative, which was launched with great
success at Harriton last year, enhances opportunities for ongoing
collaboration, and ensures that all students have 24/7 access to
school based resources and the ability to seamlessly work on
projects and research at school and at home. The result: more
engaged, active learning and enhanced student achievement.
While other districts are exploring ways to make these kinds of
incentives possible, our programs are already in place, it is no
accident that we arrived ahead of the curve; in Lower Merion, our
responsibility is to lead.

21. As part of this initiative as indicated by the Superintendent, laptop computers
equipped with webcams have been issued on a one to one basis to all high school students in the
School District.

22. An examination of all of the written documentation accompanying the laptop, as
well as any documentation appearing on any website or handed out to students or parents
concerning the use of the laptop, reveals that no reference is made to the fact that the school
district has the ability to remotely activate the embedded webcam at any time the school district
wished to intercept images from that webcam of anyone or anything appearing in front of the
camera at the time of the activation.

23. On November 11, 2009, Plaintiffs were for the first time informed of the
above-mentioned capability and practice by the School District when Lindy Matsko ("Matsko),
an Assistant Principal at Harriton High School, informed minor Plaintiff that the School District
was of the belief that minor Plaintiff was engaged in improper behavior in his home, and cited as
evidence a photograph from the webcam embedded in minor Plaintiffs personal laptop issued by
the School District.

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24. Michael Robbins thereafter verified, through Ms. Matsko, that the School District
in fact has the ability to remotely activate the webcam contained in a students' personal laptop
computer issued by the School District at any time it chose and to view and capture whatever
images were in fi'ont of the webcam, all without the knowledge, permission or authorization of
any persons then and there using the laptop computer.

25. Additionally, by virtue of the fact that the webcam can be remotely activated at
any time by the School District, the webcam will capture anything happening in the room in
which the laptop computer is located, regardless of whether the student is sitting at the computer
and using it.

26. Defendants have never disclosed either to the Plaintiffs or to the Class members
that the School District has the ability to capture webcam images from any location in which the
personal laptop computer was kept.

COUNT I - INTERCEPTION OF
ELECTRONIC COMMUNICATIONS UNDER THE ECPA

27. Plaintiffs repeat and re-allege each and every allegation above as if fially set forth
herein.

28. Plaintiffs and the Class assert this Count against all Defendants, jointly and
severally, pursuant to §§ 251 1 and 2520 of the ECPA, 18 U.S.C. §§ 251 1 and 2520.

29. Section 25 1 1 of the ECPA provides in part:

(1) Except as otherwise specifically provided in this chapter
any person who —

(a) intentionally intercepts, endeavors to intercept, or
procures any other person to intercept, or endeavor to intercept,
any . . . electronic communications;

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(d) intentionally uses, or endeavors to use, the contents
of any . . . electronic communication knowing or having reason to
know that the information was obtained through the interception of
a[n] . . . electronic communication in violation of this subsection;
. . . shall be punished as provided in subsection (4) or shall be
subject to suit as provided in subsection (5).

30. Section 2520 of the ECPA provides in part:

(a) In general. -Except as provided in section 25 11 (2)(a)(ii),
any person whose . . . electronic communication is intercepted . . .
or intentionally used in violation of this chapter may in a civil
action recover from the person or entity which engaged in that
violation such relief as may be appropriate.

(b) Relief. — In the action under this section, appropriate relief
includes -

(1) such preliminary and other equitable or declaratory
relief as may be appropriate

(2) damages under subsection (c) and punitive damages
in appropriate cases; and

(3) a reasonable attorney's fee and other litigation costs
reasonably incurred.

31. Section 2510 of the ECPA, setting forth the definitions of the terms in § 2511,
defines "person" to include "any employee, or agent of the United States or any State or political
subdivision thereof. ..." 18 U.S.C. §2510(6). Accordingly, each Defendant is a "person"
within the meaning of § 25 1 1 .

32. Section 2510 defines "electronic communication" to include "any transfer of
signs, signals, writing, imaging, sounds, data, or intelligence of any nature transmitted in whole
or in part by a wire, radio, electromagnetic, photo electronic, or photo optical system that affects
interstate or foreign commerce, . . ." 18 U.S.C. § 2510(12). Accordingly, the webcam images
complained of constitute an "electronic communication" within the meaning of § 251 1 .

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33. Section 2510 defines "intercept" to mean "the aural or other acquisition of the
contents of any wire, electronic, or oral communication through the use of any electronic,
mechanical, or other device." 18 U.S.C. §2510(4). Section 2510 defines "electronic,
mechanical, or other device" to mean "any device or apparatus which can be used to intercept a
wire, oral, or electronic communication," subject to exclusions not relevant to this action. 18
U.S.C. §2510(5).

34. The software/hardware used by the School District to remotely activate the
webcams complained of constitute an "electronic . . . device" within the meaning of 18 U.S.C.
§ 25 1 0(5). By using said software/hardware to secretly obtain webcam images, each Defendant
"intercepts" that communication within the meaning of § 25 1 1 .

35. By virtue of the foregoing, Plaintiffs and each member of the Class is a "person
whose . . . electronic communication is intercepted... or intentionally used in violation of this
chapter" within the meaning of § 2520.

36. By virtue of the foregoing. Defendants are liable to Plaintiffs and the other
members of the Class for their violations of §§ 25 1 1 and 2520 of the ECPA.

37. Since Plaintiffs first learned of Defendants' unlawful remote activation of the
webcams complained of on November 11, 2009, this action is timely and not beyond ECPA's
applicable statue of limitations.

38. Defendants' actions complained of herein were conscious, intentional, wanton
and malicious, entitling Plaintiffs and the other members of the Class to an award of punitive
damages.

39. Plaintiffs and the other members of the Class have no adequate remedy at law for
Defendants continued violation of the ECPA.

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COUNT II - THEFT OF
INTELLECTUAL PROPERTY UNDER THE CFAA

40. Plaintiffs repeat and re-allege each and every preceding allegation as if fully set
forth herein.

41 . Plaintiffs and the Class assert this Count against Defendants, jointly and severally,
pursuant to § 1030 of the CFAA, 18 U.S.C. § 1030.

42. Section 1030 provides in part:

(a) Whoever-

(2) intentionally accesses a computer without
authorization or exceeds authorized access, and thereby obtains —

(C) information from any protected computer if the conduct
involved an interstate or foreign communication;

shall be punished as provided in subsection (c) of this section.

(b) Whoever attempts to commit an offense under
subsection (a) of this section shall be punished as provided in
subsection (c) of this section.

(g) Any person who suffers damage or loss by reason
of a violation of this section may maintain a civil action against the
violator to obtain compensatory damages and injunctive relief or
other equitable relief ... No action may be brought under this
subsection unless such action is begun within 2 years of the date of
the act complained of or the date of the discovery of the damage.

43. Section 1030 of the CFAA defines the term "protected computer" to include "a
computer . . . which is used in interstate or foreign commerce or communication." 18 U.S.C.
§ 1030(e)(2)(B). Each laptop issued by the School District and equipped with a webcam is used

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in interstate communications and is therefore a "protected computer" within the meaning of
§ 1030.

44. Section 1030 of the CFAA defines the term "exceeds authorized access" to mean
"to access a computer with authorization and to use such access to obtain or alter information in
the computer that the accessor is not entitled so to obtain or alter." 18 U.S.C. § 1030(e)(6). By
using software/hardware to remotely activate the webcams complained of and intercept their
images, each Defendant has gained "access a computer without authorization or exceeds
authorized access" within the meaning of § 1030.

45. By virtue of the foregoing, Defendants are liable to Plaintiffs and the Class for
their violations of § 1030 of the CFAA.

46. Since Plaintiffs first learned of Defendants remote activation of the webcams
complained of on November 1 1 , 2009, this action is timely as to Plaintiffs and each member of
the Class.

47. Defendants actions complained of herein were conscious, intentional, wanton and
malicious entitling Plaintiffs and other members of the Class to an award of punitive damages.

48. Plaintiffs and the other members of the Class have no adequate remedy of law for
Defendants continued violation of the CFAA.

COUNT III - STORED
COMMUNICATIONS ACT (18 U.S.C. § 2701)

49. Plaintiffs repeat and re-allege each and every preceding allegation as if fully set
forth herein.

50. Section 2701 of the SCA provides, in pertinent part:
Except as provided in subsection (c) of this section, whoever-

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1) intentionally accesses without authorization a
facility through which an electronic communication service is
provided; or

2) intentionally exceeds an authorization to access that
facility;

and thereby obtains, alters or prevents authorized access to a wire
or electronic communication while it is in electronic storage in
such system shall be punished as provided in subsection (b) of this
section.

51. Section 2711 of the SCA defines "electronic communication" as "any transfer of
signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or
in part by a wire, radio, electromagnetic, photo electronic or photo optical system that affects
interstate or foreign commerce. . . ." 18 U.S.C. §§ 2711, 2510(12). Accordingly, the webcam
images complained of are "electronic communications" within the meaning of the SCA.

52. Section 2711 of the SCA defines "person" to include "any employee, or agent of
the United States or of a State or political subdivision thereof, and any individual, partnership,
association. . . ." 18 U.S.C. §§ 2711, 2510(6). Accordingly, all Defendants are "persons" within
the meaning of the SCA.

53. Section 2711 of the SCA defines "electronic storage" to include "any temporary
intermediate storage of a wire or electronic communication incidental to the electronic
transmission thereof . . ." 18 U.S.C. §§ 2711, 2510(17)(A).

54. Defendants' use of the software/hardware to remotely activate the webcams
complained of and to obtain their images constitutes an unauthorized acquisition of stored
electronic communications in violation of the SCA.

55. Section 2701(b) of the SCA provides punishment in those instances where the
unauthorized acquisition of stored electronic communications was not done for commercial gain

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or advantage of "a fine under this title or imprisonment for not more than six months, or
both. . . ." 18 U.S.C. § 2701(b)(B).

COUNT IV - VIOLATION OF THE
CIVIL RIGHTS ACT (42 U.S.C. $ 1983)

56. Plaintiffs repeat and re-allege each and every allegation set forth above as if fiilly
set forth herein.

57. Section 1983 states in pertinent part:

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity or other proper
proceeding for redress. . . ."

58. All Defendants are "persons" within the meaning of § 1983, in that at all times
material hereto they were acting under the color of state law as a political subdivision of the
Commonwealth of Pennsylvania, or a representative thereof.

59. Defendants' clandestine remote activation of the webcams complained of
deprived Plaintiffs and all members of the Class of their right to privacy as protected by the
Fourth Amendment of the United States Constitution.

60. As Plaintiffs first learned of Defendants unlawful deprivation of their privacy
rights on November 11, 2009, this action has been commenced within § 1983's applicable
two-year statute of limitations.

61. Defendants' conduct in remotely activating the webcams complained of, which
resulted in the deprivation of Plaintiffs' and the Class members' constitutionally-protected right

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to privacy was intentional, extreme and outrageous, and thereby entitles Plaintiffs and the Class
to an award of punitive damages.

COUNT V - INVASION OF
PRIVACY (U.S. CONST. AMEND. IV)

62. Plaintiffs repeat and re-allege each and every preceding allegation as if fully set
forth herein.

63. At a minimum, and pursuant to the Fourth Amendment of the United States
Constitution, U.S. CONST, amend. IV, Plaintiffs and Class members had a reasonable
expectation of privacy with respect to the use of the webcams embedded in the laptop computers
issued by the School District.

64. In particular, Plaintiffs and Class members were never informed that the webcam
incorporated into the students' personal laptop computer could be remotely activated by the
School District and/or its agents, servants, workers or employees indiscriminately at the whim of
the School District, and that such activation would naturally capture images of anj^hing in front
of the webcam at the time of its activation.

65. In as much as the personal laptop computers were used by students of the high
schools and their families, it is believed and therefore averred that the School District has the
ability to and has captured images of Plaintiffs and Class members without their permission and
authorization, all of which is embarrassing and humiliating.

66. As the laptops at issue were routinely used by students and family members while
at home, it is believed and therefore averred that many of the images captured and intercepted
may consist of images of minors and their parents or friends in compromising or embarrassing
positions, including, but not limited to, in various stages of dress or undress.

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COUNT VI - PENNSYLVANIA WIRETAPPING AND
ELECTRONIC SURVEILLANCE ACT (18 PA. C.S.A. $ 5101, ETSEO.)

67. Plaintiffs repeat and re-allege each and every preceding allegation as if fully set
forth herein.

68. Section 5703 of the PWESA states in pertinent part:

Except as otherwise provided in this chapter, a person is guilty of a
felony of the third degree if he:

1) intentionally intercepts, endeavors to intercept, or
procures any other person to intercept or endeavor to intercept any
wire, electronic or aural communication;

69. Section 5702 of the PWESA defines "intercept" to include the "aural or other
acquisition of the contents of any wire, electronic or oral communication through the use of any
electronic, mechanical or other device." 18 Pa. C.S.A. § 5702.

70. Section 5702 of the PWESA defines "electronic communications" to include "any
transfer of signs, signals, writing, images, . . . transmitted in whole or in part by a wire, radio,
electromagnetic, photo electronic or photo optical system. ..." 18 Pa. C.S.A. § 5702.

71. Section 5702 of the PWESA defines "person" as "any employee, or agents of the
United States or any state or political subdivision thereof. ..." 18 Pa. C.S.A. § 5702.

72. Pursuant to § 5702 of the PWESA, Defendants are "persons" within the meaning
of the Act, and Defendants' conduct with respect to the webcams complained of constitutes an
interception of electronic communications violative of the PWESA.

73. Pursuant to § 5725 of the PWESA:

Any person whose wire, electronic or oral communication is
intercepted, disclosed or used in violation of this chapter shall have
a civil cause of action against any person who intercepts, discloses
or uses or procures any other person to intercept, disclose or use,
such communication; and shall be entitled to recover from any
such person:

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1) Actual damages, but not less than liquidated
damages computed at the rate of $100.00 a day for each day of
violation, or $1,000.00, whichever is higher.

2) Punitive damages.

3) A reasonable attorney's fee and other litigation costs
reasonably incurred.

COUNT VII - INVASION OF
PRIVACY: PENNSYLVANIA COMMON LAW^

74. Plaintiffs repeat and re-allege each and every preceding allegation as if fully set
forth herein.

75. At all times material hereto, and pursuant to the common law of Pennsylvania,
Plaintiffs and all members of the Class had a reasonable expectation of privacy with respect to
the operation of the webcams complained of

76. Plaintiffs and Class members were never informed of the School District's
capability and practice of remotely activating the webcams complained of.

77. As the laptops at issue were routinely used by the students, their friends and
family members while at home, it is believed and therefore averred that many of the webcam
images captured and/or intercepted consist of minors and/or their parents in compromising or
embarrassing positions, including, but not limited to, in various stages of dress or undress.

WHEREFORE, Plaintiffs, Blake J. Robbins, Michael E. Robbins, Holly S. Robbins and
all members of the Class, request judgment in their favor and against Defendants, Lower Merion
School District, The Board of Directors of the Lower Merion School District and Christopher W.
McGinley, jointly and severally, as follows:

1) for compensatory damages;

' Should discovery disclose that Defendants are in possession of images constituting child pornography within the
meaning of 18 Pa. C.S.A. §6312, et. seq.. Plaintiffs will amend this Complaint to assert a cause of action thereunder.

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2) for punitive damages;

3) for liquidated damages pursuant to the PWESA;

4) for attorneys' fees and costs;

5) for declaratory and injunctive relief; and

6) for such other and further relief as this Court deems just and appropriate.

DEMAND FOR JURY TRIAL

Plaintiffs hereby demand a trial by jury on all issues for which a right to jury trial exists.

LAMM RUBENSTONE LLC

Mark S. Haltzman, Esquire (#38957)
Stephen Levin, Esquire (#19300)
Frank Schwartz, Esquire (#52729)
3600 Horizon Boulevard, Suite 200
Trevose, PA 19053-4900
(215) 638-9330 / (215) 638-2867 Fax
Attorneys for Plaintiffs and the Class

DATED: February 11, 2010

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